Fitzgerald Collecting Cheney's Smoking Guns

by emptywheel

There has been a lot of speculation this week about whether, and when, Karl Rove will be indicted. While everyone has been distracted with that excitement, Patrick Fitzgerald has laid a few more of his cards on the table, making it increasingly clear that he is closing in on Cheney. In this post, I'm going to pull together some points from three recent posts to show the evidence--and the suggestion of further evidence--including:

• A copy of Joe Wilson's op-ed annotated by Dick Cheney with comments constituting the main part of the smear launched against Wilson that week--the claim that Plame had sent Wilson on a boondoggle
• Evidence that Scooter Libby noted he had instructions to tell Judy something before he spoke with her on July 8--as well as the suggestion that his excuse doesn't hold up
• Evidence that Libby and someone else (I'm guessing it's Dick) were warned of the damage Plame's outing caused after July 14, 2003

In short, I think Fitzgerald is clearly communicating to Dick that he has evidence Dick conceived of the terms of the smear, ordered Libby to implement it, and possibly extended it after receiving warning of the repercussions of it.

Dick's Annotated Wilson Op-Ed

As part of a response to Ted Well's request that Fitzgerald reveal which news articles he intends to introduce as evidence at the trial, Fitzgerald released a copy of Joe Wilson's op-ed, which Dick annotated by taking notes and underlining certain passages. The notes say:

Have they done this sort of thing before?

Send an Amb to answer a question?

Do we ordinarily send people out pro bono to work for us?

Or did his wife send him on a junket?

Consider what these notes mean. For the most part, these questions are not first reactions to information he learned newly from the op-ed. We know from Libby's indictment that Dick already knew the CIA had sent Wilson and presumably he already knew (from the CIA materials faxed to his office on June 9) that Wilson had made the trip pro bono. And note the Plame reference: not only does this reference prove he knew of Plame's purported involvement in Wilson's trip (since Wilson's op-ed makes no mention of Plame, Dick had to have known of it independently). But it suggests that Dick's first response, upon reading Wilson's op-ed, was to insinuate it was just a boondoggle arranged by his wife. And his use of the word "junket" certainly resonates with the word "boondoggle," used to discredit Wilson's trip several times later that week (and specifically used with Walter Pincus on the same day that Cheney discussed Plame with Libby on Air Force 2).

In other words, Fitzgerald has just shown us that Dick's first response upon reading Wilson's op-ed was to produce key elements of the smear launched later in the week.

Libby's Failing NIE Excuse

Also this week, Jeralyn made the transcript for the May 5 hearing available. One detail that no one else seems to have noticed is the discussion about Libby's NIE leak, which seems to cast serious doubt on Libby's excuses surrounding his July 8 conversation with Judy Miller, thereby suggesting he was ordered to leak something else to Judy.

As part of the discussion about how Fitzgerald will introduce the information on the NIE leak, he revealed,

MR. FITZGERALD: Only to the extent that if Mr. Libby had an instruction to tell information to Ms. Miller on July 8 and he's saying the instruction reflected in his notes to tell me Judith Miller refers to the NIE. He says he did not discuss Mr. Wilson's wife that day. To our understand both were discussed. [my emphasis]

Basically, Fitzgerald elaborates on news we've known for some time, that Dick and Bush authorized Libby to leak the contents of the NIE to Judy Miller, and that that was the sole purpose of their July 8 conversation. He reveals here, though, that Libby made a note that he should tell Judy something--but that his notes don't specify what he was supposed to tell her. Libby has apparently explained that the instruction relates to the NIE.

Now there are several reasons why we shouldn't believe that excuse. First, Libby leaked the NIE to at least two more people (Bob Woodward on June 27 and--we learn today--a WSJ reporter before July 17). With Woodward, Libby leaked the NIE in his office. With the WSJ reporter, he had another official pass the information on. But for some reason, whatever he leaked to Judy on July 8 required Judy travel to DC for a meeting off-site, at the St. Regis Hotel. If, as Libby claims, this leak was authorized, he wouldn't have needed to go to those lengths.

But the hearing revealed several more problems with Libby's excuse about the NIE. First, Libby claimed to have been authorized to leak the NIE on July 2. If so, why did his note pertain to July 8 (we don't know, of course, either when the July 8 meeting was arranged nor when he wrote the note, so it's possible he wrote the note on July 2)? Also, neither Libby nor Dick nor Bush were able to tell Fitzgerald when Libby had been authorized to leak the NIE. Libby's lawyer describes it in ridiculous terms:

MR. WELLS: Just so the record is clear what the grand jury testimony is. He said that the disclosure of the material was a go, then it was a stop and then it was a go. Then he is asked at some point was it possible that you went too fast. He says I could have made a mistake but I know I was supposed to go, then I was told to stop, and then I was told to go.

But the fact of the matter is Libby has no idea whether, when he leaked the NIE contents to Woodward in June, he was authorized to do so. Yet we're supposed to believe that Libby was so worried about clarifying his authorization on July 2 that he asked Dick specifically?

And one more thing. Fitzgerald suggests (though does not assert it strongly) that Libby leaked the NIE a fourth time (the other three being Woodward, Judy, the WSJ), on July 2. Of this meeting he says only:

MR. FITZGERALD: Right. The earlier one which was July 2 only the NIE was discussed, and that's not particularly relevant but also in I think an earlier conversation we're not getting into it may have come up once before then. It is not a focus of things. I think when we go through the grand jury transcript I'm sure that there maybe something that Mr. Wells raises as -- [my emphasis]

He doesn't describe who Libby met with (from the context, it could even be a fourth meeting with Judy). But the fourth leak (and the possibility that he leaked to Judy earlier) further undermines Libby's claim that leaking the NIE to Judy was sufficiently important to require authorization and a special meeting.

In other words, Libby has testified Dick and Bush instructed him to leak something to Judy on July 8. He says they instructed him to leak the NIE. But Fitzgerald has strongly suggested that explanation doesn't hold up.

The post-Novak Warning about Damage

Finally, there is further detail from the transcript:

In a different conversation that Mr. Libby was present for, a witness did describe to Mr. Libby and another person the damage that can be caused specifically by the outing of Ms. Wilson. It was before the grand jury. It was back in July of 2003.

From a filing released yesterday, we learn:

The July 14 Chicago Sun Times column by Mr. Novak is relevant because on the day the article was published, a CIA official was asked in the defendant’s presence, by another person in the OVP, whether that CIA official had read that column. (The CIA official had not.) At some time thereafter, as discussed briefly at the March 5 oral argument, the CIA official discussed in the defendant’s presence the dangers posed by disclosure of the CIA affiliation of one of its employees as had occurred in the Novak column.

Now, I'm speculating here. But I'm guessing that:

1. The other person is Dick
2. The warning of damage related to the Plame outing occurred soon after July 14
3. The warning may have occurred before "White House sources" told Andrea Mitchell before July 20 (probably at the Ford dinner on July 16) "about the real story being not the sixteen words but Wilson and his wife" (Politics of Truth 350)

That's all speculation, of course. But the revelation--and the unnamed other person--resemble the kind of non-disclosure disclosure Fitzgerald is particularly good at. From the first release of the indictment, he has left clue after clue that Dick is his ultimate target. And in the details released this week, Fitzgerald is suggesting that Libby leaked Plame's name at the direction of Dick and Bush; indeed, that Dick was the primary architect of the smear that week. And he may have continued to leak it knowing how much damage it had caused.

Is Rove Going to be Indicted?

Which is another reason to exercise some caution about whether or when Rove will be indicted. Rove has testified a fifth time, true. And leaks from Rove's camp suggest he will be indicted shortly. But there's a possibility (an outside possibility--I personally suspect Rove will be indicted along with others, but not yet) that Rove is not testifying--perhaps not exclusively--about his own actions. Jeralyn has made an excellent case that Karl may have made a deal. And look at it this way. If you were Bush, and you had a last ditch chance to save yourself by sacrificing either your brain or your wayward Dick, wouldn't you sacrifice the one that had caused you so much trouble in the first place? Again, I think it more likely that Rove and then Dick will be targeted. But make no mistakes. Fitzgerald's recent focus has been on Dick as much as on Rove.

Update: Here's one of Jeralyn's posts where she argues that Rove has been providing evidence against his friends:

I have never bought that Rove's October, 2005 grand jury testimony was just to clear up issues about welfare reform and other details of his conversation with Cooper. I thought at the time that Rove went back to the grand jury to provide last minute testimony against others, such as Libby and Cheney, and for all we know, Hadley.

Also note. I, like most of the commentors, don't think Rove is the flipping type. But my Dick v. brain comment was meant to suggest that, if Rove testified, it might be a way to get rid of Dick, not least since Dick has been causing problems. Bush is too weak to fire Dick (can't anyway--Dick is a constitutional officer). But he can make it easier to prosecute him.

 

Comments

[Argunsmoking]

Fitz only goes after politicians and seems to avoid federal employee unions like Plame's CIA.

[emptypockets]

what's your prediction on the charge against cheney? from what you're laying out it doesn't sound like obstruction but something higher and criminal, even a misdemeanor (in the old fashioned sense).

[emptywheel]

~pockets

Well, the first question is, Can Fitz charge Cheney? I don't think so. That may be one of the reasons he's playing the slow leak. Because I think he needs to be indicted before he gets charged. But I also think the dying GOP might see taking Cheney out as a useful cleansing process.

But the charges? I guess it depends on Rove. I think there are two conspiracy charges here, one from before and one after the leak. That's the most likely. I also think you can't charge Dick with the IIPA violation, particularly not after the March 2003 Dick can declassify anything E.O.

[emptypockets]

I think he needs to be indicted before he gets charged

what's the difference? (shows how little I know.)

conspiracy (x2) but not IIPA, thanks. I was wondering which one you were headed towards.

[emptywheel]

Sorry. Impeached before charged. Fitz may need to name him as an unindicted co-conpirator in some else's indictment to get to him.

[Swopa]

And look at it this way. If you were Bush, and you had a last ditch chance to save yourself by sacrificing either your brain or your wayward Dick, wouldn't you sacrifice the one that had caused you so much trouble in the first place?

Anyone familiar with male psychology could tell you that faced with this choice, the brain gets sacrificed 99 times out of 100.

[Swopa]

By the way, I'm also very skeptical that Rove has flipped in any way, but if you're looking for motive, consider this -- as you note, on July 14th, Libby was warned of the danger of outing Plame.

And yet the Novak column started a full-tilt PR campaign about "the real story is Wilson and his wife" ... not from Libby, though. From Rove. Who kept making calls until Joe Wilson himself made clear the potential damage on TV a week later.

Get the feeling that Libby didn't tell Karl what the CIA had told him? That Libby basically hung Karl out to dry?

[emptypockets]

emptywheel, gotcha. I had indictment-impeachment chicken-and-egg the other way around. I like your version better.

[jk]

Why can't cheney be indicted?

Agnew was indicted as a sitting vice president. what is different about cheney? at the very least, it is my belief that this is an open question that i don't think would stop an indictment. or am i overlooking some precedent?

My questions are (which i have asked before, but did not stick around long enough in a previous comment thread to see if there was an answer): given cheney's ability to declassify, does that mean that nobody can be charged with the iipa violation? next question, if nobody can be charged with the iipa violation, can they still be charged with conspiracy to commit an iipa violation?

[Jim E.]

Nice post, as usual. I, too, agree that it was probably Cheney who asked the CIA officer about the Novak article.

But I have a slightly different take than you when you write: "Patrick Fitzgerald has laid a few more of his cards on the table, making it increasingly clear that he is closing in on Cheney."

I don't think he's closing in on Cheney. That is, I think Fitz's evidence against Cheney is there, but that he's not inclined to act against Cheney and that Cheney's status is static. The investigation is over (Rove excepted). Something would have to change first. In other words, Cheney remains safe unless someone flips. So maybe Fitz is dangling carrots in front of various witnesses--Libby especially--to let them know that anti-Cheney testimony can be cooberated by other witnesses and documents and that their flippage could make the difference, and be very valuable in terms of their incentive of cooperation. But aside from that, I don't think Fitz is closing in on Cheney.

But with a pardon likely, I happen to think it is crystal clear that Libby ain't gonna flip. I have serious doubts about Rove, too. Plus, I tend to wonder about the constitutional issues of Fitz even being able to indict a sitting VP who never testified under oath. Sure, I suppose false statements and even conspiracy are possible offenses, but I wonder if Fitz is prevented from acting against Cheney even if he had the goods. I would think Congress would be the only body that could act. (Oh, I see that a similar comment has been made on that.)

[Jim E.]

jk,
I don't believe Agnew was indicted. I think he resigned as part of a deal prior to being indicted. But you may be correct in it being possible to indict a sitting VP.

[Swopa]

I don't think he's closing in on Cheney. That is, I think Fitz's evidence against Cheney is there, but that he's not inclined to act against Cheney and that Cheney's status is static.

I'll take a middle option -- Fitzgerald moves at a very deliberate pace. He's known that Cheney is at the heart of this from the very beginning when he saw Libby's notes, but he doesn't proceed until he has nailed down everything he can ... and obviously, if he can get Libby and/or Rove to flip, that will help any case against Cheney immensely.

Is there a downside for Fitz in waiting? He's in no hurry to indict Cheney; in fact, he might be delighted to wait until after Big Dick leaves office in 2008 to minimize the political angle.

[William Ockham]

Posting from an undisclosed location {a beach in south Texas}
I haven't kept up with this today, but I have to say I am not surprised. Folks need to go reread the IIPA. I think even Cheney can be charged under that statute. I think Libby's truthful testimony is needed to make it stick, but with a Libby conviction in his pocket, Fizgerald might give it a try.

[Jim E.]

"Is there a downside for Fitz in waiting?"

Absolutely! Frankly, if Fitz is convinced that Rove, Cheney and others are criminals, then he needs to move a tad faster. I'm thrilled that Fitz is fighting the good fight, and he seems like a very honorable dude, but it would be nuts for him to allow them to walk the halls of power any longer than necessary. Aside from Libby (thank you, Fitz!), the same folks are still running the show. Fitz has got to act sooner, and not later. If he were to purposefully wait until after 2008, that would mean he's taking into account real-world consequences in exactly the wrong way.

So while it's good for him to dot every "i" and cross every "t," Fitz's deliberative manner is pretty frustrating at this point. But if he's done investigating, and if he's got no other indictments on the burner, I guess there's nothing to be frustrated about. He spending his time on just Libby.

[Mimikatz]

Fitz has to know that in order for Bush to be removed, Cheney has to go first (the Nixon scenario). There are many ways to get him, among them getting others to testify and making it publicly clear that he is a leaking SOB. Rove wouldn't be above ratting out Cheney if it would protect Bush and his ability to pardon Rove. Especially if Libby did forget to tell Karl about Valerie's civert status. (My money is on Tenet as the one who delivered the warning.) Maybe Libby too, if the threat got strong enough.

For a guy who dozes in public, Cheney has a lot to fear--the Wilkes-Foggo investigation that is going to end up at the Pentagon and all the black ops, which Addington and Cheney pushed; Plame and any future war profiteering investigations of Halliburton and others. Maybe he's on beta blockers or something to calm him down.

[lemondloulou54]

The annotated "What I Didn't Find in Africa" is the semen stained dress.

You think that's why they got rid of Goss, because he promised an investigation if we handed him the semen-stained dress?

I just meant that the Cheney-annotated NYT op-ed was equivalent to the semen stained dress. Like you, I think it's the smoking gun. I don't get your allusion to Goss and why they got rid of him, though good riddance.

[Jim E.]

"Fitz has to know that in order for Bush to be removed, Cheney has to go first (the Nixon scenario)."

But I didn't think Agnew's crimes had anything to do with Watergate, or anything he did while VP. I think it had to do with bribes he took (and perhaps tax evasion) while governor. So I don't think the "Nixon scenario" analogy is apt.

Plus, I don't think Bush has anything directly to do with this. This seems like all Cheney, and nothing we've learned suggests otherwise. So if you want to compare this to Watergate, it is Cheney himself who is Nixon. Cheney would be the endgame.

[tryggth]

I haven't looked at the March 2003 EO, but surely it doesn't just say the VEEP can willy-nilly declassify. What if the Pres. wants to maintain classification of something the VP wants to declassify?

[Mimikatz]

To answer an earlier question: Aaron Burr was indicted twice it seems while a sitting vp. And although Agnew did resign as part of a plea deal,

none other that [sic] then-solicitor general Robert Bork concluded that, while "the indictment or criminal prosecution of a sitting President would impermissibly undermine the capacity of the executive branch to perform its constitutionally assigned functions," the vice president was fair game.

per Brad Friedman

[viget]

Okay, my admittedly non-lawerly stab at IIPA.

First, the relevant portions of the statute:

This section describes the violations:

a) Whoever, having or having had authorized access to classified information that identifies a covert agent, intentionally discloses any information identifying such covert agent to any individual not authorized to receive classified information, knowing that the information disclosed so identifies such covert agent and that the United States is taking affirmative measures to conceal such covert agent’s intelligence relationship to the United States, shall be fined under title 18, United States Code, or imprisoned not more than ten years, or both.

(b) Whoever, as a result of having authorized access to classified information, learns the identity of a covert agent and intentionally discloses any information identifying such covert agent to any individual not authorized to receive classified information, knowing that the information disclosed so identifies such covert agent and that the United States is taking affirmative measures to conceal such covert agent’s intelligence relationship to the United States, shall be fined under title 18, United States Code, or imprisoned not more than five years, or both.

And this section has a few important definitions:

1) The term "classified information" means information or material designated and clearly marked or clearly represented, pursuant to the provisions of a statute or Executive order (or a regulation or order issued pursuant to a statute or Executive order), as requiring a specific degree of protection against unauthorized disclosure for reasons of national security.

(2) The term "authorized", when used with respect to access to classified information, means having authority, right, or permission pursuant to the provisions of a statute, Executive order, directive of the head of any department or agency engaged in foreign intelligence or counterintelligence activities, order of any United States court, or provisions of any Rule of the House of Representatives or resolution of the Senate which assigns responsibility within the respective House of Congress for the oversight of intelligence activities.

(3) The term "disclose" means to communicate, provide, impart, transmit, transfer, convey, publish, or otherwise make available.

(4) The term "covert agent" means—

(A) a present or retired officer or employee of an intelligence agency or a present or retired member of the Armed Forces assigned to duty with an intelligence agency—
(i) whose identity as such an officer, employee, or member is classified information, and

(ii) who is serving outside the United States or has within the last five years served outside the United States

My reading of the statute says that part A, i.e. a violation by someone "...having or having had authorized access to classified information that identifies a covert agent..." DOES NOT apply to Cheney, Libby or Rove, because if you look at the definition of the word "authorized" wrt access to classified information, you notice that this includes any provisions made by the head of an intelligence agency. That includes CIA distribution controls, such as ORCON and any SCI controls. My guess, though I don't know it for sure, is that OVP personnel (including the VP himself) and certainly Rove, don't fall in that category, because there is no need for the VP or his staff to know the identity of covert agents. And the whole idea behind SCI is to limit the information to a discrete compartment of individuals that have "need to know" that information in order to properly do their jobs.

Fleitz and/or Bolton might fit into this category, though.

The second category, under part B is where Cheney et al. most clearly belong. They obviously have "authorized access to classified information." And someone WITH authorized access to Plame's identity did inform Cheney that she worked at CPD.

However, that someone would not have committed a violation under part A, because Cheney et al. all have "authorized access to classified information" in general, though maybe not to Plame's ID specifically. I don't know if that was Congress's intent in the statute (though I suspect it was, because the statute also clearly states that it's not a violation to disclose the ID of covert agents to either intelligence committee of Congress, implying that some members of those committees may not have the necessary clearances to know the ID). Although, it is kind of strange, because if you read the statute literally, that means even if I just have clearances for "CONFIDENTIAL" info, if you told me about Plame's covert ID, that's not a violation.

Now, where I can see Cheney trying to weasel out of a violation here for Libby is in one of two ways. First, if you look at the definiton of "covert agent" it is a two part test. For one, you must be an officer or employee of an intelligence agency, and your affiliation with such is classified information, AND secondly you must be currently serving overseas or have served overseas in the past 5 years (from when the alleged offense would have occurred).

So I could see Cheney saying to Fitz that he insta-declassified Plame's CIA affiliation, much as he apparently insta-declassified the NIE given his new powers under the EO of March 25th. But of course, that's political suicide, and it also brings us into the sticky philosophical question of "If the VP declassifies something, and no one is around to know about it, is it still classified?", much as does a tree falling in the forest make a sound if no one is there to hear it. Of course, maybe Libby was informed of this insta-declassification, which would be pretty weasly, because if true that would mean that Plame was no longer a "covert agent" under the definitions of IIPA.

Another possibility is that both Libby and Cheney knew Plame's CIA status was classified (which there is abundant evidence to suggest), but they didn't "know" (or at least have plausible deniability to not know) that she had served overseas within the past 5 years. Thus, just telling them that "Valerie Wilson works at CIA" or even "Valerie Plame works in CPD at CIA" doesn't prove that they "know" she necessarily had served overseas. And if you look at part B again, the key to the violation is in "...knowing that the information disclosed so identifies such covert agent..." So maybe Scooter has plausible deniability on this (as Fitzgerald actually suggests in fn 15 of his August 2004 affy). Although maybe new info has come to light since then.

So, to sum up, as I see it, currently Fitzgerald cannot prosecute anyone with IIPA, yet. And maybe this is where Rove is so key, because maybe if Rove flips, he can give evidence that either Libby or Dick definitively knew Plame was covert as per the IIPA definition. If Libby definitively knew, he could be charged with an IIPA violation, most likely under section B (5 year prison term). But if Dick knew, it's a bigger problem, because then you can charge conspiracy to commit an IIPA violation, especially if you have evidence that shows Dick ordered Libby to talk to journalists about Plame. Even if Libby himself didn't know that Plame was covert, it doesn't matter for Dick, as that's your overt act in furthering the conspiracy.

It would then be interesting if, faced with a conspiracy charge, Cheney then asserts that he actually did declassify Plame's ID. It would be politically damaging, almost a Col. Jessup moment for the admin. But when you're facing prison? Would Dick actually do that?

[lemondloulou54]

Isikoff weighs in: http://www.msnbc.msn.com/id/12774274/site/newsweek/
Nothing new, but hey, he's with the MSM.

[Mimikatz]

Jim E: You missed the point. For anyone who wants Bush to leave office before the end of his term because of his incompetence and malfeasance, the main sticking point is that he would be replaced by Cheney. Same deal--no one wanted to remove Nixon if he would be replaced by Agnew. But when Agnew resigned because of unrelated crimes he committed and was replaced by the consensus candidate Gerald Ford, then it became feasible to talk about removing Nixon one way or the other because Ford would succeed him.

There is no point trying to get Bush removed until Cheney is replaced by a consensus candidate who the Dems could live with as Pres for the remainder of Bush's term. Sorry for the shorthand.

But I do think Bush was involved in the smear of the Wilsons, if only condoning it via Rove. At this point it is denial to think Bush is a good man ill-served by a few bad apples.

[obsessed]

All standard caveats apply. That said ...

New Leopold: Rove Already Indicted

Of course, even if this is true, now you've whet our appetites for Cheney ...

[obsessed]

"Michael Isikoff" is Karl Rove's pen name.

[Chris Loosley]

Rove indicted. See Jeralyn (TL) and Jason Leopold